Offerman and Offerman

[2018] FCCA 3805

FEDERAL CIRCUIT COURT OF AUSTRALIA

OFFERMAN & OFFERMAN [2018] FCCA 3805

Catchwords:
FAMILY – Property – long relationship – where the wife has made greater contributions – failure to pay child support.

Legislation:

Family Law Act 1975 (Cth) s.75(2)

Applicant: MS OFFERMAN

Respondent: MR OFFERMAN

File Number: ADC 3113 of 2017

Judgment of: Judge Young

Hearing date: 28 November 2018

Date of Last Submission: 28 November 2018

Delivered at: Adelaide

Delivered on: 28 November 2018

REPRESENTATION

Counsel for the Applicant: Mr Prendergast

Solicitors for the Applicant: Prendergast Lawyers

Counsel for the Respondent: In Person

Solicitors for the Respondent:

ORDERS

1. That by the 31 January 2019 the husband vacate the property situated at Property A and leave the property in good repair and a clean and tidy condition and the wife is to retain all right, title and interest in that property.

2. That the husband pay all the mortgage arrears on the Property A property up to the time he vacates the property.

3. That immediately after the husband complies with orders 1 and 2 the wife is to transfer her interest in the Property B properties to the husband and to provide the husband with a signed transfer and any other necessary documents at the husband’s expense.

4. That if the husband fails to comply with order 1 and 2 of these orders the Property B properties are to be listed for sale by auction with the wife to nominate three auctioneers and the husband to choose one with the reserve price to be set by that auctioneer. The auction sale is to take place before 30 May 2019.

5. That the net proceeds of such sale is to be deposited in the Trust account of Prendergast Lawyers with the amount to be paid as follows in this priority:

   (a)any arrears of mortgage on the Property A property to be paid up to date;

   (b)amount of arrears owed to the Child Support Agency to be held in trust for the Child Support Registrar;

   (c)the balance to be paid to the husband.

6. That the parties have liberty to apply for further orders in relation to property.

7. The husband is to retain his business and otherwise each party is to retain all right, title and interest in the property currently in their possession.

8. That all outstanding applications be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Offerman & Offerman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3113 of 2017

MS OFFERMAN

Applicant

And

MR OFFERMAN

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a property case.  The wife is 44 years old and the husband is 47 years old.  They have three children aged 16, 13 and 5 years old.  The husband runs his own business and the wife is employed as a tradesperson.  The parties began their relationship in 1992 or thereabouts and married in 2007.  They separated in June 2016.  The relationship lasted about 24 years.  The husband was employed, it appears, throughout the relationship.  The wife appears to have been employed for much of that period other than at times when she was caring for the children. 

3. At the outset of the relationship the husband owned a property at Property C jointly with his father and still owns that property jointly with his father.  It appears that the property has been tenanted and rent paid to the husband although he gave no specific evidence about how that was spent.  Even though the property is jointly owned I have considered, in calculating the pool, that the value of the husband’s half share, while both joint owners are alive, is half of the value of the property, in other words, $63,500. 

4. In 1999 the parties purchased vacant land at Property A, and built a house there with money borrowed from a bank.  In 2004 the parties purchased three blocks of land on the Property B by extending the bank borrowings secured against the Property A property. 

5. In 2005 the wife inherited her uncle’s house which was subsequently sold for $80,000.  This money was used to purchase or install a swimming pool at the former matrimonial home; to buy a motor car; to purchase something described as a “machine”, the precise purpose of which was not explained but I infer that it was intended as part of a business venture that did not proceed.  The balance was expended on living expenses.  In other words, the money inherited by the wife or at least the property inherited by the wife appears to have been largely dissipated. 

6. The husband also complains that the wife withdrew two amounts of $10,000 each, that is, $20,000, from her superannuation during the relationship on hardship grounds.  The wife agreed that that is the case and she said that she paid credit card debt and used the money to pay living expenses of the family.  In my view, as this occurred during the relationship, the issue is largely irrelevant.  The husband did not challenge the wife’s evidence about how the money was spent.

7. I have prepared a balance sheet:

Item	Description	Wife	Husband	Total
Assets
1	Property A	$350,000
2	Property B	$65,000	$65,000	$130,000
3	Property C property (1/2 share)	$63,500
4	Husband’s firearms, tools	$5,000
5	Household contents Property A	$5,000
6	Husband’s business	Nil
7	Various vehicles etc.	unknown	unknown
Total	$420,000	$133,500	$553,500
Liabilities
8	Property A mortgage	$139,000	$139,000
Net assets	$281,000	$133,500	$414,500
If 52/48	$216,000	$198,500	$414,500
Payment required to husband	($65,000)	$65,000
Superannuation
9	Neither party sought orders	unknown	unknown

1. The values were agreed except for the husband’s business. In an earlier financial statement he put a figure of $6,000 on the business.  His more recent financial statement values the business at nil.  He was not cross-examined.  The husband is a sole trader and the business in substance represents only his time and labour.  I’m not satisfied that the business has any particular value beyond what its assets or liabilities might be and there was no real evidence about that.  

2. In relation to superannuation, the evidence was somewhat conflicting with assertions that the superannuation of the parties went from something like $80,000 to $40,000 but neither party pursued this and neither party sought a splitting order and each party were content to keep their own superannuation.  In submissions Mr Pendergast who appeared for the wife said that the amounts were approximately the same.  In view of the parties’ attitude to this, I don’t believe I need to give it any more notice. 

3. In relation to contributions, I find that contributions to the acquisition of the property of the parties has been equal.  The husband’s initial interest in property at the outset of the relationship was the jointly owned property with his father which is now said to be worth, as I say, about $63,500.  In my view that greater initial contribution by the husband is offset by the wife’s inheritance of property worth $80,000 which was largely dissipated or spent on joint finances. 

4. In the post-separation period there are some differences.  The husband is in arrears under his child support assessment in the sum of $4,666.  It was said – and this was not really denied by the husband – that he refuses to pay child support.  He is self-employed and I’m sure that the Child Support Agency would have difficulty collecting child support in those circumstances.  He asserted that he had made other contributions to the welfare of the family. 

5. That is largely a matter for the Child Support Agency but it leads me to conclude that up to now, up to the date of trial, the wife has made a greater contribution by reason of the husband’s failure to pay child support.  He also occupies the former matrimonial home and the mortgage is about $4,300 in arrears at the moment.  The wife has been obliged to find rental property elsewhere for herself and the children.  I think these factors merit a finding that contributions about been 52 per cent by the wife and 48 per cent by the husband. 

6. Turning to section 75(2) factors, both parties are presently employed. The husband says that he has an income, according to his financial statement, at least, of $695 a week which he said was made up of $477 from income from his business – and I note that would equate to an annual income of $24,804. He says he receives rents, as I understand it, of $38 a week and he receives what I take to be a family tax benefit of $180 a week.

7. The husband did not put any tax records in evidence and the only evidence of the husband’s actual income is a Child Support assessment dated 16 December 2016 which gave the husband’s income – presumably from the previous financial year – as a provisional income of $31,644.  These issues leave me in some doubt about what the husband’s actual income is.  However, he was not cross-examined on his financial statement and in the circumstances I consider that I’m probably obliged to accept his claims. 

8. The wife is currently employed part time.  She says she has a gross income of $800 a week.  Again there was no payslip in evidence and it was essentially an assertion from the bar table made by Mr Prendergast in circumstances where the husband did not seek to cross-examine the wife so I give that claim some weight and, as I say, it’s not challenged so I think it probably needs to be accepted. 

9. The husband says he had some health issues after a back injury but there was no medical evidence of any diminished earning capacity and I do not propose to give his claims about that any weight. All in all, I consider that it is not necessary to make any adjustment for section 75(2) factors. That means that there will be a 52/48 per cent split of the assets, other than superannuation assets which I don’t propose to disturb, in favour of the wife.

10. On the balance sheet, the Property A property is in the wife’s sole name and I assume the mortgage is also in her name.  I was given no evidence about that but the upshot will be that a 52/48 per cent split would see the wife having to pay $65,000 or its equivalent to the husband and the equivalent, I’m satisfied, should be the value of her half interest in the Property B blocks valued at $65,000. 

11. So the percentage split that I’ve arrived at will be satisfied by the transfer of the wife’s interest in the Property B blocks to the husband and, of course, she retains the Property A property subject to its present mortgage. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Young.

Date: 19 December 2018